The Rights of Others: Legal Claims and Immigration Outside the Law

Abstract

This Article analyzes the rights of unauthorized migrants and elucidates how these noncitizens are incompletely but importantly integrated into the U.S. legal system. I examine four topics: (1) state and local laws targeting unauthorized migrants, (2) workplace rights and remedies, (3) suppression of evidence from an unlawful search or seizure, and (4) the right to effective counsel in immigration court.

These four inquiries show how unauthorized migrants – though unable to assert individual rights as directly as U.S. citizens in the same circumstances – can nevertheless assert rights indirectly and obliquely by making transsubstantive arguments that fall into five general patterns. The first is an institutional competence argument that the wrong decisionmaker acted. The second is an argument that an unauthorized migrant was wronged by a comparatively culpable person. The third is a citizen proxy argument that sustaining an unauthorized migrant’s claim will protect a U.S. citizen or lawful permanent resident. The fourth is that an unauthorized migrant may be unable to challenge the substance of a decision, yet may mount a successful procedural surrogate challenge to the way that decision was reached. The fifth is a phantom norm argument that, even if a government action withstands constitutional challenge, it violates a statute or regulation.

These patterns illustrate how typical doctrinal relationships and litigation strategies – for example, choosing between equal protection and preemption arguments, or between seeking redress for harms to individuals and harms to groups – shift significantly for unauthorized migrants. These patterns of oblique rights reflect a pervasive national ambivalence about immigration outside the law.

Keywords: Immigration, citizenship, immigrant integration, immigration federalism, rule of law, educational access, immigrants' rights, immigration history, undocumented immigration